Assessment of Workplace Harassment Investigation Reports (DRAFT)
Prepared by Catherine Burr
OCUFA Workshop, January 23, 2014
Investigations are often complex and the resulting investigation reports may also be
complex. However, an investigation should result in clarity: Are the allegations
substantiated or not substantiated? Did the alleged behaviors/infractions occur, and if so
do they constitute workplace harassment, bullying, sexual harassment, racism – or
whatever is alleged?
There are many potential causes of insufficient or inadequate investigation reports. Typical
and significant flaws are:
 lack of appropriate thoroughness of the investigation or of the analysis of the
evidence,
 lack of objectivity demonstrated by investigation practices or analysis,
 lack of fairness when natural justice processes are not observed or due process is
not provided.
Flawed investigation reports may also result when the investigator lacks expertise
regarding workplace investigations, or regarding harassment or the issues in consideration,
or when conflict of interest/bias, or improper legal or policy analysis is involved. I expand
on such issues in Appendix A (attached), suggesting several ways investigation reports may
be problematic, and giving some general examples.
Suggested Starting Points for Critically Assessing Investigation Reports and
Recommendations
Option 1: Use a draft investigation plan approach
To critically review an investigation report, one technique is to outline an investigation plan
for the investigation and assess the investigation report against it.

Outline a draft investigation plan: identify the evidence that would determine the
merit of the allegations (i.e., substantiated, or not substantiated)
For example:
o Did what is alleged occur?
 allegations/complainant’s position
 respondent’s position/defence
 witness evidence, documentation, physical evidence, etc
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o If it did occur, does an analysis of the evidence lead to a determination that
the behaviour in question constitutes workplace harassment (or whatever is
alleged)?

identify the sources of the evidence needed
For example:
o who to interview
o what to ask/verify
o documentation
o physical evidence
o verification of evidence

identify the standards and/or criteria against which the allegations are to be
assessed
For example:
o relevant legislation (eg: Ontario’s Human Rights Code, Ontario’s
Occupational Health and Safety Act/Bill 168 amendments)
o OHR Commission policy statements or guidelines, OHR Tribunal decisions
o MOL guidelines or directives (note: regulations have not yet been issued)
o court and arbitration decisions
o the employer’s policies/standards
o collective agreement provisions
o FORESTER-CT (fair, objective, rapid, evidence-based, thorough, equitable
remedies, confidentiality, transparency – see workshop PowerPoint slides)
Use this draft investigation plan to assess the investigation report. What is missing in the
investigation report? What questions arise regarding the adequacy of the evidence
obtained or the assessment of the evidence by the investigator?
IF there are problems – especially significant problems – or if questions arise, then it may
be that the investigation report and/or the investigation is inadequate, or may require
further clarification.
An inadequate or questionable investigation and report may lead to inappropriate
decision-making by the employer.
Some potential outcomes:
 Clarify what is unclear or incomplete and revise the report.
 Continue or re-open the investigation (to fill gasp).
 Commence a new investigation – with the same or a different investigator (if the
integrity of the investigation is significantly questionable or if the ability/expertise
of the investigator is significantly questionable).
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Option 2: Assess appropriateness of investigation processes
Another technique is to check whether appropriate investigation processes have been
used. If not, it may be reasonable to conclude that these processes may have negatively
affected the quality of the evidence obtained and assessed.
For example, the investigation:
 Lacks processes of natural justice (eg: full disclosure of allegations to the
Respondent).
 Lacks elements of due process (eg: not a full opportunity for the Respondent to
respond to the allegations and to provide their position on the complaint).
 Does not provide opportunity for the parties to rebut/challenge evidence.
 Accepts evidence at ‘face value’ and does not verify it.
 Shows bias, lack of objectivity or one-sidedness by the investigator.
 Lacks appropriate credibility assessment – of persons, documentation, etc.(eg:
where evidence is contradictory).
 Shows lack of reasonable support/resources/representation provided to the
parties (eg: union representation for Complainant and Respondent).
 Lacks timeliness in starting or completing the investigation, in reporting findings, in
communicating remedies/resolution (eg: ‘stale’ evidence).
Option 3: Consistency and scope of recommendations
The investigation report may or may not include recommendations regarding remedy and
resolution of the complaint. Or, recommendations may be made by the investigator
separate from their investigation report. If recommendations are provided:
 Are they consistent with the findings and conclusions?
 Do they address all issues identified by the investigation?
 Do they address both individual and systemic issues identified?
Option 4: Consistency of employer’s remedies with the evidence
Are the employer’s decisions, including disciplinary sanctions, consistent with the
investigation report’s evidence and findings?
For example:
 The investigation report states the allegations are not substantiated and does not
otherwise find inappropriate behaviour by the Respondent, yet the employer
disciplines the Respondent. [Note: Disciplinary action should not, however, be
confused with clarification of expectations of behaviour which the employer may
reinforce with the Respondent or others. Similarly, other actions and activities to
help an employee or supervisor to better deal with conflict and other concerns may
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
be a reasonable outcome to a complaint, but which do not constitute disciplinary
remedies.]
The investigation concludes that an allegation is substantiated as harassment, but
no employment consequences result for the Respondent to prevent a recurrence.
APPENDIX A
How might workplace harassment investigation reports be inadequate?
Here are some ways investigation reports may be problematic.

Not sufficiently thorough:
o Each allegation is not investigated.
o Demonstrating a ‘rush to judgement’ to draw conclusions of substantiation
or non-substantiation based only on preliminary, little or incomplete
evidence.
o The allegations are not analysed to determine if a pattern or “course of
vexatious comment or conduct” exists.
o A chronology and/or chain of events is not constructed, especially to
determine whether there is a pattern of “a course of vexatious comment or
conduct”.
o Relevant witnesses are not interviewed.
o Complainant, Respondent and/or witnesses are superficially interviewed.
o Documentation/physical evidence is not obtained or not assessed.
o Similar fact evidence (as appropriate to the allegations and evidence
obtained) is not gathered or assessed. Or, what is gathered is not
sufficiently ‘similar’.
o The “work environment” or context is not assessed to determine whether
the behaviour constitutes harassment in that setting.

One-sided or biased:
o “Whose” witnesses are or are not interviewed, or who is asked to provide a
list of suggested witnesses?
o Contrary evidence is not sought or assessed.
o Lack of verification of positions of certain parties (evidence is accepted ‘at
face value’).

Lack of procedural fairness:
o Respondent is not fully informed of the allegations.
o Respondent is not given a reasonable opportunity to respond to allegations
and to advance their position.
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o All of the Complainant’s allegations are not considered.
o Complainant is expected to provide ‘full’ evidence rather than establishing a
prima facie case of discrimination, harassment, etc. – or reasonable
elements of a prima facie case.
o An opportunity to rebut the Respondent’s evidence/position is not given to
the Complainant.
o The Respondent is not given an opportunity to rebut additional evidence
provided by the Complainant.
o Lack of timeliness of the investigation, employer decision-making
subsequent to the investigation, or implementation of remedies/
resolutions.

Not taking allegations (or the response) seriously or dealing with the allegations in a
minimal or inappropriate manner:
o Characterizing the allegations in a manner that does not adequately
represent the position of the Complainant.
o Demonstrating a ‘rush to judgement’ to draw conclusions of nonsubstantiation based only on preliminary findings related to the allegations
(or to the response).
o In Ontario (under the OHSA), treating allegations and evidence of workplace
violence as workplace harassment.

Lack of policy or legal analysis – or inappropriate analysis:
o What constitutes “harassment” (etc) is not guided by the legislated
definitions, and the (often higher) standards set in the employer’s policies.
Both need to be considered in the analysis of the evidence.
o “Intent” is inappropriately considered for human right code violations (and
likely for OSHA violations). [Note: I suggest that intent is a relevant
consideration related to identification of appropriate remedies, especially
regarding the probability of recurrence – but is inappropriate in the analysis
of the evidence regarding whether a violation occurred.]
o The totality of the evidence is not assessed.
o Assuming that actions and behaviours that fall into the category of
“managerial functions” (scheduling, job assessment, disciplinary action, etc.)
are – in and of themselves – not workplace harassment, rather than
assessing the reasonableness of the action or conduct found. [Note: I
suggest that arguments of “academic freedom” also need to be assessed for
the reasonableness of the conduct found.]
o Using a “beyond a reasonable doubt” criminal standard of proof, instead of
a “balance of probabilities” civil standard of proof.
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
Analysis of evidence does not address the dynamics of harassment (bullying, racism,
sexual harassment, violence, etc), intersectionality or retaliation:
o Interpersonal conflict or ‘personality conflicts’ may or may not constitute
workplace harassment.
o Issues of poor performance, mental health, lack of job qualifications, (etc)
must be considered separate from evidence of harassment. [i.e., a poor
performer can experience harassment.]
o Similarly, discrimination, harassment or violence need only be a factor, not
the factor in the employer’s decision-making, actions or conduct toward the
person.

Inappropriate or inadequate investigation practices:
o not identifying the facts
o not analysing the evidence in relation to the legal/statutory requirements
and the employer’s policy framework
o not assessing credibility
o investigation logistics that put unreasonable pressure on the parties or
which create an environment that will not facilitate the truth (eg: location
of the interviews, how parties are contacted and informed about interviews,
coaching of parties regarding the substance of their testimony, lack of or
type of representation/support/advice provided or allowed, biased practices
or perceived conflict of interest)
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